The opinion of the Court was delivered by
Willaed, A. J.The principal question raised by the com-jflainant’s appeal arises upon the construction of certain clauses of the will of Daniel T. Cureton, the testator of George Brown, the complainant in the first case named above. The testator, after making certain dispositions, unimportant to the present question, directs that all the rest of his negroes should be valued and divided by five disinterested parties, to be named by the Ordinary of the District, into four lots, as nearly equal as might be 'practicable, keeping families together as much as might be possible. He directed that certain specified slaves should be included,.at a valuation, in the lot set apart to Drayton T., one of his sons, and that the three other remaining lots should be drawn: one by his son, James, one by his daughter, Lucinda, and one by his grandson, J. D. Sheely, for himself and his sisters — the lot going to grandchildren to be equally divided among them. He further directs that the residue of his estate be sold, and, after payment of debts, the proceeds be applied: first, to .equalizing the lots which his children and grandchildren would take under' the clauses before referred to, and the balance to be disposed of under subsequent provisions of the will.
The slaves were divided accordingly, but the lots were of unequal value. The question presented is, whether the directions of the will, as to the proceeds of the estate devoted to the equalization of the lots, can be carried into effect by paying to those having the lots of least value a sum sufficient to equalize them1 on the basis of the valuation ascertained at the time of division. The decree ascertains that the provisions of the will, in regard to the apportion*239ment of the slaves, were carried out, and, there being no appeal from that determination, it must stand as a fact in the case. This fact is of importance, for, if the provision's of the will, directing an apportionment, had been found incapable of enforcement, the subsequent dispositions depending, as to their utility, upon the execution of such antecedent directions, would have failed. But, on the contrary, the very case has arisen that was in the contemplation of the devisor. But it is said that circumstances have occurred not contemplated by the testator, namely: the slaves have become emancipated in the hands of the distributees. The loss of the slaves was the result of a fortuitous event that occurred after the distributees had come into possession of them, under the terms of the will. The intent of the testator, as to equalization, must be tested by the events existing at the time of the apportionment. Then it was that the distributees of the least valuable lots had a right to call for the execution of the equalization clauses in their behalf. It is true the bounty of the testator proved less valuable than he probably anticipated, but not through events that arrested the execution of his declared will and intent.
The clause of the Constitution of this State declaring void contracts, the consideration of which was for the purchase of slaves, has been cited as interfering with the clauses'of the will under consideration. This case cannot be brought within that provision, as it is not sought to enforce any contract of that character. The re-' lations of vendor and vendee, inseparable from the idea of such a contract, do not exist in the present case.
The decree, however, goes too far in directing that "the parties must account to others for any excess in the value of their lots.” In the present state of the case, all that is appropriate is, that the dispositions made by the will, as to the application of the residue of the estate to the equalization of the lots, should be carried out through the accountings ordered and the proper orders to be made hereafter thereon.
We think that the decree is misapprehended by the first ground of the appeal; but, as the question of the extent of the liability of the estate of James Cureton may well be deferred until the various accounts are complete, the decree will be modified by reserving that question accordingly.
It is ordered, adjudged and decreed, that so much of the decree appealed from as orders that the parties must account to others for *240an excess in the value of their lots, and as to so much of said decree as determines that James Cureton, by continuing in the possession of the whole estate of Drayton T. Cureton after his death, did not assent to the legacies given by his will, and that his estate is not liable for the same, nor for the debts due by the estate of said Drayton, the said decree b.e, and hereby is, modified in such manner as to reserve the consideration of said questions until the accounts are taken which were ordered by said decree.
It is further ordered and decreed, that so much of the sixth clause of the will of Daniel T. Cureton as directs that certain funds be applied in equalizing the lots of negroes ■which his children and grandchildren would take, under the fourth clause, be established, and that this cause be remanded to the Circuit Court for such proceedings and final decree, upon the principles herein settled, as may be meet and proper, and for the determination of the questions here-inbefore reserved, should they arise; and said decree is, in all other respects, affirmed.
Moses, C. J., concurred.